Compensation and Damages for Serious Invasion of Privacy

The statutory tort caps non-economic loss (distress, humiliation, anxiety, and loss of dignity) at the same level as the defamation damages cap, which rose to $500,000 on 1 July 2025. This cap applies to both non-economic loss and exemplary damages combined. You do not need to prove financial loss to receive this compensation. The tort is actionable per se, meaning the invasion itself is the compensable wrong. In addition to non-economic loss, the court may award an account of profits where the defendant derived a financial benefit from the invasion. While the body of Australian case law on quantum is still emerging, courts are likely to look to UK, New Zealand, and Canadian privacy tort jurisprudence for guidance on assessment. For a detailed explanation of the damages framework, see our page on how much compensation for invasion of privacy.

No. The statutory tort for serious invasion of privacy is actionable per se. This means you can recover compensation for non-economic loss (distress, humiliation, loss of dignity, anxiety) without proving any financial or economic harm. This is a significant departure from most civil claims, which require proof of damage as an element of the cause of action. If you have also suffered financial loss as a consequence of the invasion, that may be recoverable as well, but it is not a prerequisite.

They are separate regimes with different scope and outcomes. The OAIC complaint pathway under the Australian Privacy Principles (Schedule 1 of the Privacy Act) is free, does not require a lawyer, and can result in a determination requiring the respondent to compensate you or change its practices. However, it only applies to APP entities (generally organisations with annual turnover above $3 million, health service providers, and Commonwealth agencies). It does not cover individuals, small businesses below the threshold, or most private conduct. Outcomes tend to be modest and the process is slow. The statutory tort under Schedule 2 allows you to sue any person, corporation, or government body in court, regardless of whether they are an APP entity. It provides for damages up to the statutory cap, exemplary damages, injunctions, and accounts of profits. It is the stronger avenue for serious invasions. For a full comparison, see OAIC complaint vs suing for invasion of privacy.

No. Truth is not a defence to a claim under the statutory tort for serious invasion of privacy. This is a fundamental difference between privacy law and defamation law. In defamation, a defendant can defeat your claim by proving the published material was substantially true. Under the privacy tort, the wrong is the invasion of your privacy, not the falsity of any statement. True information disclosed without your consent is fully actionable if the other elements of the tort are established. If the same conduct also damages your reputation, you may have overlapping claims in both privacy and defamation. See invasion of privacy vs defamation for an explanation of how the two causes of action interact.

Exemplary damages (sometimes called punitive damages) are an additional award intended to punish the defendant for particularly egregious, deliberate, or calculated conduct and to deter similar behaviour. Note that under Clause 11, exemplary damages are subject to the same statutory cap that applies to non-economic loss. The court has discretion to award exemplary damages where the circumstances warrant it. Factors likely to be relevant include whether the defendant acted with malice, whether the invasion was repeated or sustained, whether the defendant profited from the conduct, and whether the defendant disregarded warnings or legal demands to stop. Courts may draw on the approach taken in UK privacy tort cases and in Australian defamation law.

The limitation period is one year from the date you became aware (or ought reasonably to have become aware) of the invasion, or three years from the date the invasion occurred, whichever expires first. In limited circumstances, the court may extend time up to a maximum of six years from the date of the invasion. These are strict deadlines. If you miss the limitation period, your claim is likely to be statute-barred regardless of its merits. If you believe your privacy has been seriously invaded, you should seek legal advice promptly. See privacy tort time limits for further detail.

An apology by a defendant does not constitute an admission of fault or liability under clause 13 of Schedule 2. However, the court may take an apology (or the absence of one) into account when assessing the quantum of damages. In practice, this means a prompt and genuine apology may reduce the amount awarded, while a refusal to apologise or continued defiant conduct may increase it. This mirrors the approach taken in defamation law.

We offer a fixed-fee confidential initial assessment for $770, which provides you with a written opinion on the merits of your claim and the available options. A pre-action demand letter is available for a fixed fee of $990. If the matter proceeds to court, costs will depend on the complexity of the claim, the conduct of the defendant, and whether the matter resolves at an early stage or proceeds to trial. We provide clear costs estimates at each stage. The statutory tort allows the court to make costs orders, and a successful plaintiff will generally seek to recover a proportion of their legal costs from the defendant.

Yes. Where the same conduct gives rise to both a privacy claim and a defamation claim, you may have overlapping causes of action. For example, if someone publishes your private medical records and the publication also damages your reputation, you may have a claim under both the statutory tort and the Defamation Act 2005. The two claims have different elements, different defences, and different remedies. We practise in both areas. For matters that involve both privacy and defamation, see invasion of privacy vs defamation or visit defamationlawyer.au.

The statutory tort is a relatively recent addition to the Australian legal system. As a result, reported decisions on its application are limited. Significant questions about how courts will interpret the seriousness threshold and apply the public interest balancing test are still being explored. Australian courts may consider overseas privacy tort jurisprudence from the United Kingdom, New Zealand, and Canada as persuasive authority. We monitor developments in this area closely to advise clients on the current state of the law.